Conservatives' conception of classical legal
liberalism of the late 19th and early 20th centuries is based
on an idealized past that doesn't exist, said Robert W. Gordon,
Yale Law School's Chancellor Kent Professor of Law and Legal History,
at an event sponsored by the American
Constitution Society Oct.
14 in Caplin Pavilion. Furthermore, any contemporary attempt to
follow the era's model of social regulation and free market libertarianism
can only lead to the same dire consequences, he added.

“I want to argue that indeed we have already tried out one version
of the conservative experiment,” he said. “We have seen the past
and it didn't work.”

“Do we really want to revive the law of the classical
era?” he
asked. He claimed most modern American conservatives today are
in fact radicals who want to overthrow long-established legal practices. “For
the most part conservative ideology is backward-looking,” he said. “It
is an overwhelming politics of nostalgia.”

Conservatives' belief in originalism—that the
Constitution should be interpreted strictly according to what they
believe its framers meant—“is not really a practical
program.”

Even during the 18th and 19th centuries, there
were "conflicting and ambiguous views" about how the laws set forth
by the Constitution should be carried out. Its protection of freedom
of speech didn't prevent the federal government from prosecuting
some who practiced it throughout American history, for example.
The framers could not have predicted or planned for the types of
cases American courts handle today, either.

“We could not restore that world of 18th-century
conservatism if we wanted to. . . and no one—even conservatives—really
wants to.”

Gordon outlined two modern strains of conservatism
that don't jibe well: economic libertarians, who idealize the Lochner era
of supposed laissez faire attitudes, and cultural conservatives,
who idealize the era for its attempts at social control of immorality
and deviant behavior. Yet both are hostile to welfare—economic
libertarians because they don't like redistributing income,
and cultural conservatives because they believe it leads to immoral
behavior like promiscuity.

“These two wings are very different
parties, of course . . . their major programs seem incompatible,” Gordon
said. For example, television leads to immorality, according
to the cultural conservatives, but it also sells
products and keeps the economy moving, which libertarians appreciate.

Unlike the left, which has struggled to unite
its constituency, these two strains of conservatism have been able
to ally against their opposing party, despite their differences. “Their
solidarity is given ideological comfort . . . by shared traditionalist
nostalgia,” he said.

In the 19th century, the country's "moralized
political economy" connected prosperity with goodness. “They
believed that the market was a tester, or a theater, of virtue,” Gordon
said. Financial success in the market was seen as a sign of moral
success, and vice versa. Courts were supposed to step back
and clear the way for natural laws that would better govern men's
actions in the free-market society. Americans viewed their country
as progressing towards a liberalized, ideal society, and once
that society had been achieved, the free, natural market would
only need occasional servicing and maintenance.

But “by and large they didn't really act as if they believed in
this,” he said. In the social realm, the natural state was viewed
as fallen, weak, and sinful, and “the glue of society was in the
bonds of community and authority.

“The order of competition rested on spheres of
social life like the family,” he said. “The order of equal rights
rested in hierarchical subordination”—a wife was subordinate
to her husband,
an employee to his employer.

Gordon challenged the conservative conception
of the era's hands-off society, citing the federal government's
actions toward the Mormons during 1860-90, when an arsenal was
deployed against Mormon economic and social institutions. The result?
Women's suffrage was repealed in Utah, polygamy was banned, and
the government limited Mormons' holdings of real property. “These
were massive interventions,” he
said, during the supposed height of laissez faire.

Liberty was
an important interest when it served the family structure of
separate spheres, but dangerous when it threatened that social
order. Reformers grew obsessed with suppressing vice because
of the new threats to the moral economy, Gordon said. The increase
in immigration from Europe and Asia threatened this social
order as well, causing the emergence of residency tests and laws
criminalizing anarchist speech.

“The problem, however, was the market seemed
to be wreaking havoc with the moral economy,” he said, thus the
need for courts to regulate the former realm of natural law.
Cast in this light, it was easy for judges to see labor strikes
as interference with freedom for consumers and other workers' rights,
and the strikes' potential violence was a threat
to public order. While juries still sided with laborers, civil
rights protests didn't receive the same protection.

“Legal authorities were disposed to respond with
repression . . . even if doing so repressed the market,” he added.
Courts upheld vagrancy laws and saw the dangers of women's expanded
contractual opportunities with prostitution (once seen as an effective
safeguard for respectable wives with randy husbands), and outlawed
abortion and contraception. In one Supreme Court case, justices
upheld the indecent exposure conviction of the author of “The Nudes
and Prudes.”

The South was especially patriarchal, with excessive
laws against rape by black men; the region also tightened anti-incest
laws and strengthened enforcement of sexual codes. The preservation
of racial and sexual order easily trumped the economic order, Gordon
said.

“As a social experiment, the classic legal liberalism was a huge
failure,” he said. The current conservative vogue that finds it
alluring only arises from misapprehensions of its consequences—class
conflict, squalor, and racial oppression. “Yet there is something
to be learned from the classical legal liberalism, and that is
that it doesn't work.”

Gordon added that the Progressive programs that
followed the era "were not invariably better by any means." Some
of the old-time conservatives turned out to be champions against
the Progressives' eugenics movement and opposed
prohibiting people from learning their native language in school.

Conservatives may have the nostalgia bug now,
but “all
movements, liberal and conservative, appeal to something that we've
lost,” Gordon
said. People in the 19th century thought they were evolving toward
the ideal society, but were troubled by clouds on the horizon,
spurring the spate of social regulation. “We
seem to be living, in my mind, in a very similar age,” he said. “This
is the language of a powerful, very insecure empire.”• Reported by M. Wood